Well, they ALMOST got it right: United States v. Arizona & S.B. 1070

The Supreme Court’s decision in United States v. Arizona was heralded by many liberals as a complete victory for the Obama Administration. With 3 of 4 provisions of S.B. 1070 deemed unconstitutional and the final section open to “as applied” challenges, many see the measure as on “life support.”

The real loser here, then, was the law. Here’s why:

The Supreme Court almost got it right in United States v. Arizona yesterday. That might sound like high praise for the institution that decided, and yesterday reaffirmed, Citizens United; concededly, they could have done substantially worse than their 5-3 decision finding 3 of the 4 challenged provisions of Arizona’s S.B. 1070 preempted by federal law. While the decision is undoubtedly a substantial win for the President, liberal circles have begun their celebration a bit too early. The decision not to strike Section 2B is a telling repudiation of the President’s power to regulate immigration policy, even when operating with delegated powers. It’s also a study in how the Court allows its decisions to dictate how they read the law.

The fact that the Court, as presently constituted, upheld a piece of controversial conservative legislation comes as no surprise. What truly boggles the mind, however, is the way the Court came to its decision. Section IV(D) of the opinion, finding federal law didn’t preempt 2B, must have been written and reasoned in total isolation from the rest of the decision. Emphasis on must. It’s the only way to explain this decision.

Throughout Sections IV(A)-(C), the Court relies heavily on Hines v. Davidowitz, a 1941 decision finding Pennsylvania’s independent immigrant registration scheme to be preempted by the federal registration scheme then in place. Explaining why Section 5C, which imposed penalties on unregistered migrants for (gasp!) working, the Court quoted Hines: “The ordinary principles of preemption include the well­settled proposition that a state law is preempted where it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”

Several sentences later, with no visible irony, the Court quoted the 1971 decision from Motor Coach Employees v. Lockwood, stating “[t]he Court has recognized that a ‘[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.’”

In fact, the Court spends much of these 3 subsections building its case around the existence of a comprehensive federal immigration policy as its guiding logic for striking the 3 disputed provisions. In each instance, the Court examines the legislative framework created by Congress to give meaning to particular provisions at odds with Arizona’s draconian legislation.

For example, in its explanation of why Section 6, which vested Arizona police with warrantless arrest power on the basis of suspected “removability,” was preempted, the Court examined the totality of federal laws on the issue. It even got its statutory analysis right! Interpreting 8 U.S.C. §1357, which outlines the terms of federal-state cooperation in immigration enforcement, the Court appropriately noted that “[f]ederal law specifies limited circumstances in which state officers may perform the functions of an immigration officer.”

The Court also noted that 1357(g), the section laying out the terms of cooperation, requires written agreements between the U.S. Attorney General and any local law enforcement agencies describing in detail the terms of local enforcement assistance. This includes supervision by the A.G., specifically enumerated responsibilities, and a certification that the specific authorized persons were trained in immigration enforcement.

They even appropriately construed 1357(g)(10)(b), a statutory catchall that says no agreement is needed for incidental “cooperation,” accepting the Justice Department’s proffered examples of “cooperation.” (These include “situations where States participate in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities,” according to the Court).

This is what Supreme Court preemption jurisprudence should look like.

Then, it turned to Section 2B. Here, the rules of statutory analysis change; gone is the reference to the entirety of the federal framework of immigration laws and Congressional intent. Instead, hewing to Arizona’s argument, the Court cherry-picks provisions of the very same statutes it just analyzed as a whole. The result is predictable.

With no reference to the rest of the statute, the Court held that §1357(g)(10)(A), authorizing immigration inquiries by local authorities without a written agreement with the A.G., is clear evidence that Arizona could compel its police to always check the status of arrestees and check, “where practicable,” the status of any individual subject to “lawful detention” with the police. The Court supported this with reference to another statutory provision, 1373(c), which requires the federal government to respond to state immigration inquiries. Arizona’s argument, which the Court validated, rests on a false paradox: if federal immigration laws permit federal and state actors to cooperate in their enforcement, and Arizona has legislated to maximize its cooperative enforcement of federal immigration laws, how could Arizona’s enforcement mandates be preempted by the very same federal immigration laws?

Notice what’s missing? The entire framework of federal immigration laws and Congress’ intent when it passed the laws.

Gone is the notion that states are limited partners in immigration enforcement, serving at the pleasure of the A.G. Even though the Court acknowledged this limited state role in the preceding sections of its decision, it refused to acknowledge that mandatory immigration checks at federal expense would be outside of this carefully circumscribed role; this is despite the fact that an officer’s “suspicion” of a person’s illegal presence in the U.S., corroborated by a lack of validating identification, is a sufficient basis to begin investigating.

Rather than acknowledging that 1357(g)(10)(A) was merely a catchall to correspond to 1373(c) (the two were passed simultaneously) and that 1357(g)(10)(B) only contemplated incidental federal-state cooperation, the Court plucked these provisions out of the U.S. Code as a plenary grant of authority for Arizona’s police officers to take on a substantial role in immigration enforcement, at federal expense.

By upholding 2B, the Court invited Arizona law enforcement to “lawfully detain” any “suspected” illegal aliens; it’s not unreasonable to suspect the program will be just as evenly used as New York City’s new “stop and frisk” policy. With the Court’s blessing, any individual arrested in Arizona will be detained until his or her immigration status is verified. This doesn’t sound daunting, until one realizes that the police have to contact the federal government, and the immigration databases are not remotely comprehensive. Suddenly, the Court’s earlier concern for “unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation)” has vanished, with their trust that Arizona officials wouldn’t possibly abuse this law.

Ignoring the likelihood of racial profiling (as the Court expressly ordered in oral arguments), this decision still makes little sense in terms of federal immigration priorities. The Court’s previous concern for the Executive’s enforcement priorities, pursued through powers duly delegated by Congress, evaporate when considering whether Arizona’s police officers should be allowed to inundate the federal immigration verification system with status checks. The Court even conceded “that §2(B) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have detained.” Even though the Executive sets immigration priorities, especially regarding the use of scarce resources, the Court was unconvinced that implementing 2B would interfere with effective enforcement. Of course, it’s worth noting that the Court also chose to ignore the fact that the Executive branch sued, claiming specifically that 2B would substantially interfere with effective immigration enforcement.

In defense of its decision to reverse both the District Court and the Ninth Circuit, the Court veered back towards canons of statutory construction after its short break from paying heed to its own statutory analysis. Since the case was before the Court on a pre-enforcement injunction, the Court claimed that state courts must be allowed to construe the law before it would deem it preempted by federal law. In fairness, the Court did use precedent here, quoting Fox v. Washington (1915): “[s]o far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts.” Yet in its zeal to support this conclusion, the Court cited another case, Huron Portland Cement Co. v. Detroit, noting: “[t]o hold otherwise would be to ignore the teaching of this Court’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists.” And this is where its logic completely falls apart.

To claim that striking Section 2B would be to “seek out conflicts between state and federal regulation where none clearly exists,” ignores the basic fact that the legal challenge to 2B was predicated on interfering with federal enforcement priorities. Immigration enforcement priorities are set by the President and Executive Branch; this power was delegated by Congress, as is the power to write all other regulations and policies to fill in federal legislation. If this might sound like the kind of “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” the Court cited from Hines, it’s because 2B is exactly that kind of obstacle.

In essence, the Court is stating: we cannot find a conflict with federal policies, even though the Executive, with Congressional authorization to set policies, has taken the rare step of suing before a law could go into effect due to its stated conflict with federal policies. The Court need not “seek out” a conflict; one was presented to it quite directly.

It bears noting that the Court left open the possibility of subsequent “as applied” challenges to section 2B after state courts construe the law and Arizona begins applying the law. Yet the Court also stated that any construction of 2B would be likely constitutional, and only warned of racial profiling—a particularly difficult allegation to prove. As a best case scenario, then, Section 2B may finally be overturned after it is repeatedly abused as a profiling tool to round up illegally present immigrants. Only after families are torn apart and hardworking migrants are deported can the Court gauge whether this policy is constitutionally valid. And by then, other states will have followed Arizona’s model, taking the Supreme Court’s blessing to flood the federal government with immigration status checks in pursuit of “safer borders.” Likely, by the time the Court decides the issue appropriately, it will be moot for lack of immigrants. And this will be just how Arizona wanted it.